Model to Combat Patent Risks in Open Source Software

Professors at University of California Berkeley are proposing a defensive licensing scheme to fight patent risks in development and use of open source software. In one of my earlier posts, I wrote about the risk of patent infringement with respect to use of open source software and steps to mitigate the same. The model being proposed by Professor Jason Schultz and Professor Jennifer Urban may play an important role in minimizing patent risks if it is adopted by the open source community.

The model called as ‘Defensive Patent License’ is a distributed network of patent owners, who agree for the use of their patents for defense purposes under a license. It is similar to the model of GPL and other licenses that bring together a group of copyright owners under a common license. In simple words, what it means is that a group of patent owners will agree to pool their patents to fight companies that enforce patents against them. Whenever a company files an infringement suit against an open source user, the patents in the pool can be asserted against the company.

In order to be a part of the pool a company must contribute all its patents to the pool. It cannot choose to contribute only few of its patents. Furthermore, once a company opts to leave the pool, the rights it had given under the license will continue to remain valid. The Defensive Patent License model is different from a general patent pool because under this model the company will have to give away all its patents into the pool and cannot pick and choose patents for the pool. Specifics of the model will be known only when the license agreement is released.

While the proposed model is being hauled by some as a necessary move to combat patent infringement suits, others are doubtful about its success because most companies follow hybrid models involving open source and proprietary software and may not be interested in contributing all patents to the pool. Most proponents of open source software are against software patents and have stated that the model requires patent filings, which is against the basic philosophy that patents are against freedom to use the software. Others have pointed out that the model is a costly one and could be difficult to implement.

Considering the increase in patent infringement suits and bearing in mind that policy change with respect to software patenting is a long shot, viable strategies must be evolved to combat patent risks. Quite a few open source friendly companies have promised that they would not assert their patents against the open source community and users. Despite the promises, recent incidents have shown that the promise has limited scope and companies are not bound by it. Under the circumstances, the Defensive Patent License is an excellent initiative and has the potential to help the open source community defend patent suits effectively.